Private Property Rights, The Takings Clause; Backdoor Regulatory Capture and Hurricane Survivors
In light of recent Court rulings, recent floodplain rules, and property acquisition programs; a legal challenge is ripe for adjudication under eminent domain through backdoor regulatory capture.
In light of recent hurricanes and numerous government regulatory rules that dictate, when and if, a property owner is able to retain their land after a natural disaster, a recent Court ruling and many legal scholars believe there is a legal argument to protect the land owner and to challenge these programs. What we need now are lawyers to file lawsuits on behalf of Plaintiffs who have been irreparably harmed by the new floodplain rules.
Lawyers need to secure Plaintiffs and challenge state floodplain mitigation rules that forcibly coerce property owners to accept a property acquisition buyout offer. These cases are ripe for adjudication and must be aggressively pursued.
Two recent Supreme Court rulings on “Public Use” interpretation and how it diminishes our property rights under the Fifth Amendment Takings Clause is ripe for challenge for the people who are facing losing their property based on regulatory capture. In two landmark Supreme Court decisions Bridge Aina Le'a, LLC v. Hawaii Land Use Commission, No. 18-15738 (9th Cir. 2020), and the Kelo v. City of New London (2005), Justice Clarence challenged with a dissent arguing that the Court’s decision effectively replaced the “Public Use” requirement of the Takings Clause with a “Public Use” test, which he considered a misinterpretation. After the Supreme Court Kelo ruling, numerous states changed their eminent domain laws based on the controversial Kelo Supreme Court decision to protect private property rights.
Another pivotal Takings Clause regarding unconstitutional land division is a Supreme Court decision in the Hodel v. Irving, 481 U.S. 704 (1987) case regarding fractional division of American Indian land trusts. The Supreme Court ruled the “appellees have “standing to challenge § 207, which has deprived them of the fractional interests they otherwise would have inherited. This is sufficient injury-in-fact to satisfy the case-or-controversy requirement of Article III of the Constitution. Moreover, the concerns of the prudential standing doctrine are also satisfied, even though appellees do not assert that their own property rights have been taken unconstitutionally, but rather that their decedents' right to pass the property at death has been taken.”
In a more recent case Bridge Aina Le'a v. Hawaii Land Use Commission 2020, Supreme Court Justice Thomas forcibly rebuked the decision by dissent stating “it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth.”
Justice Clarence Thomas went further in the dissent highighting Nollan v. California Coastal Comm’n, 483 U.S. 825, 866 (1987), explaining how exceedingly rare a property owner has won under the Takings Clause citing a “regulation effects a taking, we have said, whenever it “goes too far.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). This occurs categorically whenever a regulation requires a physical intrusion, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982), or leaves land “without economically beneficial or productive options for its use,” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1018 (1992). But such cases are exceedingly rare. See, e.g., Brown & Merriam, On the Twenty-Fifth Anniversary of Lucas: Making or Breaking the Takings Claim, 102 Iowa Lev. 1847, 1849–1850 (2017) (noting that in more than 1,700 cases over a 25-year period, there were only 27 successful takings claims under Lucas—a success rate of just 1.6%).
A Three-Part Balancing Test or One Strike Rule is “so vague and indeterminate that it invites unprincipled, subjective decision making” dependent upon the decisionmaker. Furthermore, the Four-Factor Penn Central Regulatory Takings Test “doctrine has become a compilation of moving parts that are neither individually coherent nor (collectively compatible”). “A know-it-when-you-see-it test is no good if one court sees it and another does not.”
The "regulatory takings clause" is part of the Fifth Amendment of the US Constitution, and it refers to a legal principle where government regulations can restrict property use to such a degree that it constitutes a "taking" of private property, requiring the government to provide just compensation to the property owner. But what is just compensation for the property owner when the government pays more for the property to meet their ideological ends? A current example of paying more for a private property that has experienced recent flooding, transfering the property deed over to another third party and turning land into “Public Use” green space is the NC Strategic Buyout Program. The NC Carolina Strategic Buyout Program is not limited to NC; many similar programs span across many regions and most states.
The Fifth Amendment covers multiple areas including private property stating “or be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. The Fourteenth Amendment's Due Process Clause requires that all levels of government operate within the law and provide fair procedures. The Supreme Court has interpreted the Due Process Clause to protect procedural and substantive due process, as well as to prohibit vague laws. A "back door regulatory eminent domain" refers to a situation where a government, through overly restrictive regulations on private property, essentially takes control of the land without directly exercising the power of eminent domain effectively "taking" the property without formally acquiring it, often raising concerns about abuse of power and potential violations of property rights.
In the landmark of Kelo v. City of New London,” the Supreme Court ruled that the government could use eminent domain to take private property from one and transfer it to another private entity for the purpose of economic development, essentially upholding the practice of transferring private property to another private entity through eminent domain.
In Thomas M. Cooley’s Constitutional Limitations and Constitutional Originalism, he argued “a legislative enactment to pass one man’s property over to another would nevertheless be void. If the act proceeded upon the assumption that such other person was justly entitled to the estate . . . it would be void, because judicial in its nature; and if it proceeded without reasons, it would be equally void, as neither legislative nor judicial, but a mere arbitrary fiat.”
Cooley went further explaining common law has never sanctioned an appropriation of a property based on public purpose alone stating “It may be for the public benefit that all the wild lands in the State be improved and cultivated, all the low lands drained, all the unsightly places beautified, all dilapidated buildings replaced by new; because all these things tend to give an aspect of beauty, thrift, and comfort to the country, and thereby invite settlement, increase the value of lands, and gratify the public taste; but the common law has never sanctioned an appropriation of property based upon these considerations alone; and any such appropriation must therefore be held to be forbidden by our constitution.”
Supreme Court Justice Clarence Thomas addressed the ambiguity of transferring private property to another third party for public purposes and the Takings Clause in a dissent opinion in the landmark case Kelo v. City of New London. The Supreme Court ruled that the government could use eminent domain to take private property from one and transfer it to another private entity for the purpose of economic development, essentially upholding the practice of transferring private property to another private entity through a backdoor regulatory backdoor eminent domain transaction.
In Justice Clarence Thomas Kelo dissent he argued that “When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is “employing” the property, regardless of the incidental benefits that might accrue to the public from the private use. The term “public use,” then, means that either the government or its citizens must “actually employ” the taken property.” “The Public Use Clause, in short, embodied the Framers’ understanding that property is a natural, fundamental right, prohibiting the government from “taking property from A. and giving it to B.”
Justice Clarence went even further to address whether legislatures had the deference to determine what determines the viable “public purpose” interpretation, “moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature’s determination of the various circumstances that establish, for example, when a search of a home would be reasonable.” “Once one accepts, as the Court at least nominally does, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it.”
Justice Clarence Thomas’s dissent in the Kelo decision addressed the harms and consequences of taking private land writing “The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.”
The Takings Clause, fractional division of land, and converting private property for economic use or “Public Use” is ripe for adjudication both at the state and federal level. Whether a case should proceed at the state level, addressed at the legislative body, or at the federal level is up for debate. Some constitutional legal scholars argue that legal challenges to Takings Clause should be adjudicated at the state level while others argue it should be settled at the Supreme Court level. The legal scholars arguing the Takings Clause at the Supreme Court level presents a momental task when there are roughly 30,000 local government municipalities.
But other legal scholars stipulate a narrower interpretation of the “Public Interest” definition and when its proper for the government to seize private land needs to be settled at the federal level and would bring more clarity to the States when adjudicating disputes.
Is it time to challenge Biden’s Executive Order 14008 “Tackling the Climate Crisis at Home and Abroad”, and the subsequent new FEMA floodplain rules either at the state or federal level? The legal argument of eminent domain by backdoor regulatory capture is when a State must abide by federal regulations either by Executive Order and/or by federal regulatory agencies. These programs require states to abide by numerous federal regulations in order to receive taxpayer subsidized funds. A recent Washington D.C Court of Appeals ruling Marin Audubon Society v. Federal Aviation Administration, No. 23-1067 (D.C. Cir.) just might add more weight to the eminent domain backdoor regulatory capture legal agrument outlined above.
The Washington D.C. Court of appeals ruled in Marin Audubon Society v. Federal Aviation Administration the White House Council on Environmental Quality (CEQ), established to instruct agencies on NEPA compliance, does not have the power to issue regulations on other federal agencies as it has been the case since 1970.
Is there a law firm ready to take up the challenge for the Hurricane survivors who do not want to sell their property but are becoming hopeless as the harsh cold winter months fast approach. A well crafted legal argument based on the Takings Clause and proper Public Interest is a legal argument that must be challenged. In the meantime, state legislatures must revise their homeowner financial assistance programs to help current property owners repair and rebuild their homes.
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